Citation Nr: 1310290	
Decision Date: 03/27/13    Archive Date: 04/09/13

DOCKET NO.  10-00 297A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD) based on military sexual trauma (MST).

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

C. Hancock, Counsel


INTRODUCTION

The Veteran served on active duty from September 1969 to April 1972.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the benefits sought on appeal. 

A video conference hearing was held in January 2013, with the Veteran sitting at the RO, and the undersigned Veterans Law Judge sitting in Washington, DC.  A transcript of the hearing testimony (transcript) is associated with the claims folder.

The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Affording the Veteran all reasonable doubt, PTSD has been shown to be related to the claimed MST.

2.  Affording the Veteran all reasonable doubt, tinnitus is causally related to noise exposure during active service.




CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for PTSD based on MST have been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 

2.  The criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters:  Duties To Notify And Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.

Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b) (2012).

VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of VCAA.  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004).





Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

In light of the favorable action taken in this decision that service connection is warranted for PTSD based on MST and for tinnitus, the Board finds that further discussion of VCAA compliance as to these issues is not warranted at this time.

Analysis

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.

Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b).  In Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the United States Court of Appeals for Veterans Claims (Court) found that a finding of continuity of symptomatology to presume service connection for a chronic disease applies only to the diseases listed at 38 C.F.R. § 3.309(a)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of at least 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309.

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following:  (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms.  Savage v. Gober, 10 Vet. App. 488 (1997).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).






The Veteran contends that he is entitled to service connection for PTSD.  Specifically, he asserts that he was the victim of a sexual assault while stationed in Badtoz, Germany.  He specifically named one of his attackers.  See VA PTSD examination report, dated in June 2011.  He also claims that he has tinnitus as a direct result of exposure to acoustic trauma while on active duty.  See VA Form 21-4138, dated in June 2008.  

In order for a claim for service connection for PTSD to be successful, there must be:  (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) ; (2) a link, established by medical evidence, between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).

If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident.  Examples of such evidence include, but are not limited to:  records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians, pregnancy tests or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy.  Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.  Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to:  a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  38 C.F.R. § 3.304(f)(3).

There are special development procedures pertaining to the processing of a claim, as here, for service connection for PTSD based on personal (sexual) assault.  VA has special evidentiary development procedures, including the interpretation of behavioral changes by a clinician and interpretation in relation to a medical diagnosis.  See Patton v. West, 12 Vet. App. 272 (1999) (citing VA Adjudication Procedural Manual M21-1, Part III, paragraph 5.14(c) (Aug. 1, 2006)).  These special evidentiary procedures for PTSD claims based on personal assault are substantive rules that are the equivalent of VA regulations.  See YR v. West, 11 Vet. App. 393 (1998); see also Cohen v. Brown, 10 Vet. App. 128 (1997).

Because personal assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor.  In these situations, it is not unusual for there to be an absence of service records documenting the events the veteran has alleged.  The victims of this type of trauma may not necessarily report the full circumstances of it for many years after it occurred.  Thus, when a PTSD claim is based on a personal assault in service, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident.  38 C.F.R. § 3.304(f)(5); see also Patton, 12 Vet. App. at 277.

Examples of such evidence include, but are not limited to:  records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  38 C.F.R. § 3.304(f)(5).

Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.  Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to:  a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  Id. 

The Court has set a relatively low bar for interpreting a claim for PTSD as one involving a personal assault stressor for which the provisions of § 3.304(f)(5) are applicable.  See, e.g., Bradford v. Nicholson, 20 Vet. App. 200 (2006) (Veteran alleged that his sergeant kicked him down a set of stairs).



Moreover, VA itself has defined personal assault very broadly to include an event of human design that threatens or inflicts harm.  Examples of personal assault include rape, physical assault, domestic battery, robbery, mugging, stalking, and harassment.  See VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iv., Ch. 4, Section H, part 30(a) (Aug. 1, 2006); VA Adjudication Procedure Manual M21-1MR, Part IV, Subpart ii., Ch. 1, Section D, part 17(a), (c) (Dec. 13, 2005).

As a consequence, it is important to address and consider the applicability, or at least the potential applicability, of § 3.304(f)(5) in claims of entitlement to service connection for PTSD where the appellant describes any type of action or occurrence that could generally be described as constituting an "assault" or "harassment" during service, even if it is unclear whether the appellant is actually claiming PTSD based on that alleged assault or harassment.

As such, VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavioral changes may constitute credible supporting evidence of the stressor in allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.  Here, while the Veteran has not been provided notice of these applicable regulations, as his PTSD claim is being granted, such an omission is not prejudicial to him in any manner.  

VA recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing in-service stressors when the stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity.  75 Fed. Reg. 39843  (July 13, 2010).  The amendments, which took effect July 13, 2010, redesignated current paragraphs (f)(3) and (f)(4) of 38 C.F.R. § 3.304(f) as paragraphs (f)(4) and (f)(5), respectively, and added a new paragraph (f)(3).  These amendments are not applicable to the Veteran's claim. 




To establish service connection for tinnitus, the Veteran is not obliged to show that his tinnitus was present during active military service.  However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

PTSD

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and will grant service connection for PTSD based on MST.  38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). 

The fact that the Veteran has been diagnosed with PTSD is not in dispute.  What remains to be determined is whether PTSD is related to service or to a verified incident (MST) that occurred during service. 

It is noteworthy that service treatment records are negative for treatment or diagnosis of a psychiatric disorder, to include PTSD.  The Veteran was discharged from service in 1972 and the first record of psychiatric treatment is dated in 2000, almost 30 years after his discharge. This is well outside the one-year presumptive period for psychoses.  38 C.F.R. §§ 3.307, 3.309.

While this lengthy period without treatment would ordinarily constitute negative evidence against the claim, because it tends to disprove that a chronic disability manifested in service, or persistent symptoms thereafter; the Veteran maintains that he suppressed memories of the incident until recently and the June 2011 VA examiner found his psychiatric profile consistent with his presentation of MST.

The Veteran indicated on several occasions that he did not report his in-service sexual assault when it occurred.  

Usually, absent a verified stressor event, there can be no valid diagnosis of PTSD.  38 C.F.R. § 3.304(f)(3).  However, the June 2011 VA examiner, after reviewing the Veteran's claims folder, indicated in his report that although the Veteran did not, due to shame, report the MST to the appropriate officials.  The examiner found that the Veteran's "military stressor appears to be more likely than not" related to his PTSD diagnosis.  

At his January 2013 hearing conducted by the undersigned, the Veteran testified that he did not report his being physically and sexually assaulted when it occurred, even to the police or chaplain.  He added that he was too ashamed.  See page four of transcript.  He also provided a detailed account of what occurred to him.  See pages five and six of transcript.  The Veteran also testified that while he signed up for a three year tour, and meant to make the Army his career, when he was offered an opportunity to separate from service six months earlier - due to his having been assaulted -- he elected to do so.  See page eight of transcript.  

Thus, the VA examiner's June 2011 opinion provides corroboration of the appellant's claimed stressors.  In cases specifically involving claimed personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b).  See YR v. West, 11 Vet. App. 393, 399 (1998).  See also Patton v. West, 12 Vet. App. 272, 279-280 (1999).  Furthermore, the Court clarified in YR and Patton that the general rule that after-the-fact medical nexus evidence cannot establish the occurrence of the claimed in- service stressor, does not apply to claims for PTSD based on sexual assault. 





Tinnitus

The Veteran's service treatment records make no mention of any complaints of, or findings relating to, tinnitus.  As part of a VA Form 9, dated in May 2012, the Veteran attributed his tinnitus to his having been exposed to acoustic trauma while in the military.  He added that this included his firing M-60 machine guns.  He has otherwise in the record alleged to have been the recipient of in-service acoustic trauma.  See, for example, VA Form 21-4138, dated in May 2008.  The Board notes that the Veteran's DD 214 mentions that he received a Marksman award for the M60 machine gun.  

The medical evidence of record concerning this claim includes the report of a September 2008 VA audio examination.  The examiner at that time, while commenting that it was less likely as not that the Veteran's tinnitus was related to in-service noise exposure, added that the etiology of the Veteran's tinnitus was at that time undetermined.  The audiologist commented that it was "possible" that the Veteran's tinnitus was related to post-service hearing loss or to other (both service and non-service-related) medical or psychological conditions.  The examiner added that the Veteran showed a significant history for recreational noise exposure, including hunting and going to noisy nightclubs.  

At his January 2013 hearing conducted by the undersigned, the Veteran testified that he was exposed to multiple weapons in the military, and that he experienced ringing in his ears while still in the military.  

The Board has considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignment during his period of active duty.  In giving due consideration to the places, types, and circumstances of his service, noise exposure is acknowledged.  38 U.S.C.A. § 1154(a).  The Board also observes that tinnitus is subjective and the type of condition to which lay testimony is competent to diagnose.  Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).  The Board also finds the Veteran's testimony at his January 2013 hearing concerning in-service noise exposure and ringing in the ears as well as his account of experiencing continuous symptoms since service to be credible.  

In Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit reiterated its interpretation of lay testimony adopted in Waters v. Shinseki, 601 F.3d 1274 (Fed Cir. 2010), that medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service.  Id. at 6-7.  Of course, that is not to say that it will always be possible to establish a nexus through lay evidence, as there may be instances, such as the Waters case itself, in which the lay evidence falls short of satisfying the statutory standard.  Id.

In view of the totality of the evidence, including the Veteran's documented in-service duty assignment and acknowledged in-service noise exposure, current findings of tinnitus, credible lay assertions of in-service tinnitus, the observation by the VA audiologist in June 2008 that it was "possible" that the Veteran's tinnitus was related to his military service, the absence of a contrary medical opinion, and the contentions that such is related to acknowledged in-service noise exposure, the Board finds that tinnitus is causally related to noise exposure during active service. 

As to both claims now before the Board for appellate consideration concerning PTSD and tinnitus, there can be no doubt that further inquiry could be undertaken with a view towards development of the claims.  However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).

Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993).  The current medical evidence, as previously discussed, is sufficient to grant the benefits sought in the instant appeal. 


ORDER

Entitlement to service connection for PTSD based on MST is granted 

Entitlement to service connection for tinnitus.  


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim seeking service connection for bilateral hearing loss so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

The Veteran claims that he is entitled to service connection for bilateral hearing loss because it was incurred during service.  As discussed in conjunction with his tinnitus claim, above, the Veteran alleges, and the Board concedes, that he was exposed to acoustic trauma during his military service.  The Board notes that the Veteran's DD 214 mentions that he received a Marksman award for the M60 machine gun.  He added in August 2009 that he did not wear hearing protection in service while undertaken small arms firing practice.  See VA Form 21-4138.  

The report of a September 2008 VA audio examination (and signed by the VA audiologist in November 2008) shows that bilateral hearing loss, as defined by VA in 38 C.F.R. § 3.385, was diagnosed.  Sensorineural hearing loss was also diagnosed.  The examiner noted on the report that the Veteran had exposure to light weapons while in the military.  The examiner opined that the Veteran's bilateral hearing loss was less likely as not related to in-service noise exposure.  The examiner observed that the Veteran was not shown to have complained of hearing loss during his military service, or within one year of his service separation.  The examining audiologist observed that the Veteran's service enlistment and separation examinations showed normal hearing bilaterally.  She also cited to a study, which she claimed essentially found that when service entry and exit audio examinations were normal, there was no scientific basis for concluding that hearing loss which develops 20 or 30 years later is casually related to military service.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 ) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Board also observes that Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss.  In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise).  It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. 

In this case, the VA examiner in September 2008 essentially found that, as the Veteran did not complain of hearing problems in service, and since a hearing disorder was not shown to be present in the course of his service enlistment and separation examinations, the Veteran's currently-manifested bilateral hearing loss was not etiologically related to his military service.  

As noted above, the law does not necessarily require that hearing loss manifest in service.  It would have been helpful, while the Board acknowledges that she did cite to findings from a specifically-identified study, if the examiner brought her expertise to bear in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current bilateral hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause.  

Based on the foregoing, the Board finds that this matter should be remanded and that, upon remand, the RO should send the claims file, to include a copy of this remand, to the September 2008 VA auidiologist for the purposes of determining whether in-service noise exposure could cause the Veteran to progressively lose his hearing over the years.  Hensley.  

Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should return the claims file to the audiologist who conducted the September 2008 VA audio examination, if she is available.  The examiner must review the claims file, to include a copy of this remand, and provide an opinion on the following:

While the service treatment records, to include the examinations at the time of service entrance and separation, do not show hearing loss at that time, is any current hearing loss at least as likely as not (50 percent probability or greater) etiologically related to in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively lose his bilateral hearing over the years).  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.  The Board notes that the Veteran's DD 214 mentions that he received a Marksman award for the M60 machine gun.  In-service noise exposure is conceded.

The examiner must provide a rationale for the opinions expressed.  In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.  Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors.

In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

If the September 2008 VA examiner is unavailable, the case should be referred to another qualified examiner in order to obtain the above requested opinions.  Should a new VA examination be required, one should be scheduled.

2.  The RO/AMC must notify the Veteran that it is his responsibility to report for a scheduled VA examination, if scheduled, and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. § 3.655 (2012).

In the event that the Veteran does not report for the examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

3.  When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence.  If the benefit sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs